Crane v. Riehn, 59686

• Decision Date: 24 July 1978
• Docket Number: No. 59686,59686
• Citation: 568 S.W.2d 525
• Parties: Mary E. CRANE and Nathan Douglas Crane, by his next friend, Mary E. Crane, Appellants, Aetna Casualty & Surety Company, Intervenor, v. Hobert Fred RIEHN, Macke's Farm Service, Larry McGowan, Respondents.
• Court: Missouri Supreme Court

Page 525

568 S.W.2d 525

Mary E. CRANE and Nathan Douglas Crane, by his next friend Mary E. Crane, Appellants Aetna Casualty & Surety Company, Intervenor, v. Hobert Fred RIEHN, Macke's Farm Service, Larry McGowan, Respondents.

No. 59686.

Supreme Court of Missouri,En Banc.

July 24, 1978.

John Reid, II, Schnapp, Graham & Reid, Fredericktown, for appellants.

David G. Beeson, Albert C. Lowes, Buerkle, Buerkle & Lowes, Jackson, Donald P. Thomasson and Paul V. Gilbert, Jackson, Thomasson, Dickerson & Gilbert, Cape Girardeau, for respondents.

RENDLEN, Judge.

Larry Edward Crane, fatally injured in a highway accident on September 15, 1969, ¹ was survived by his parents, whom he did not support, and his pregnant wife, the plaintiff, Mary Crane. On April 27, 1970 almost seven and one-half months following the accident, Mary Crane gave birth to her son, the plaintiff, Nathan Douglas Crane.

Plaintiffs filed their petition for wrongful death August 20, 1971, twenty-three months following the fatality, but decedent's parents have not joined in this proceeding nor have they brought a separate action to secure their interests. All defendants denied liability alleging contributory negligence and defendant McGowan, not served until March of 1975 (more than five years after Crane's death), moved to dismiss alleging the bar of § 537.100, RSMo 1969. ² After the decisions of this Court in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo.banc 1976) and Selsor v. Zenith Radio Corporation, 536 S.W.2d 157 (Mo.banc 1976), defendants amended their pleadings alleging that decedent's parents survived him, a fact admitted by plaintiffs, and moved to dismiss for the reason the action had not been brought within one year following the death. Defendants' motions were sustained and from the order of dismissal plaintiffs appealed.

Under § 537.080, RSMo 1969, as interpreted by this Court in Kansas City Stock Yards and Selsor, supra in 1976, and more recently in Edmonsond v. Lakeside Hospital Association, 562 S.W.2d 361 (Mo.banc 1978), the claim for wrongful death accrued on the date of death vesting in decedent's minor child and spouse who, because decedent's parents survive, were obliged to appropriate their preferred right of action by filing suit within one year from the date of death or failing so to do the claim passed to and vested in decedent's parents.

We first consider the fact that plaintiff Nathan Douglas Crane was born seven months after his father's death and its effect on plaintiff's right of action. The class of persons described as parties entitled to maintain an action in subsection 537.080(2) as "spouse or minor children" who must "sue within one year (if deceased is survived by a parent or parents) after such death" does not expressly include children born subsequent to the death. Assuming, arguendo, the class includes such post-born minor and that the one year period was extended by the birth of decedent's son seven and one-half months following "such death", he nevertheless failed to commence suit within one year after his birth, April 27, 1970. Thus (though we do not rule the point), if the one year period were extended, at least as to Nathan's claim, the cause of action if separable in the minor was extinguished April 27, 1971, almost four months before suit was brought. See Wessels v. Gipfel, 522 S.W.2d 653, 656 (Mo.App.1975). It cannot be said that plaintiffs appropriated their cause of action because they "failed to timely perfect an essential element of their claim for relief." Edmonsond v. Lakeside Hospital Association, supra at 363. Under § 537.080 the suit was properly dismissed.

Seeking to preserve their right of action, plaintiffs assert that the statute is violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and Art. I, § 2 of the Missouri Constitution because it discriminates between (1) that class of minor children and/or spouse of a decedent survived by one or both of his parents and (2) that class of minor children and/or spouse of a decedent not survived by parent or parents. The former is subject to the one year limitation of § 537.080(2), but not the latter, which is limited only by the two year term of § 537.100.

In this regard it is important that § 537.080, creating the referenced classes of claimants, does not establish differences within a class and it is generally held that legislative classification of the type here considered is not prohibited by the equal protection clauses of the United States and State Constitutions "if all within the same class are included and treated alike." Brawner v. Brawner, 327 S.W.2d 808, 815 (Mo.banc 1959). While the general purpose of the cited constitutional provisions is to prevent invidious discrimination, the creation of unequal rights between classes (not otherwise suspect) is permissible unless such classification rests upon grounds irrelevant to the achievement of the State's objective or not reasonably related to the legislative purpose. Gem Stores, Inc. v. O'Brien, 374 S.W.2d 109, 117 (Mo.banc 1964); Petitt v. Field, 341 S.W.2d 106, 109 (Mo.1960). These principles were discussed in some detail in Ballentine v. Nester, 164 S.W.2d 378, 383 (Mo.banc 1942) as follows:

" 'There is therefore no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities. And necessarily so. In a classification for governmental purposes, there cannot be an exact exclusion or inclusion of persons and things.' It is 'sufficient to satisfy the demand of the Constitution if a classification is practical and not palpably arbitrary.' Louisville and Nashville R. R. v. Melton, 218 U.S. 36, loc. cit. 55, 30 S.Ct. 676, 54 L.Ed. 921 (47 L.R.A., N. S., 84). 'The selection, in order to become obnoxious to the fourteenth amendment, must be arbitrary and unreasonable, not merely possibly, but clearly and actually, so.' Bachtel v. Wilson, 204 U.S. 36, loc. cit. 41, 27 S.Ct. 243, 245, 51 L.Ed. 357. Again, 'a classification may not be merely arbitrary, but necessarily there must be great freedom of discretion even though it result in ill-advised, unequal, and oppressive legislation.' Heath & Milligan Mfg. Co. v. Worst, 207 U.S. (338), loc. cit. 354, 28 S.Ct. 114, 119, 52 L.Ed. 236; . . . " (Other citations omitted.)

The question for us is whether the classification of claimants within the framework of the wrongful death statutes bears a reasonable relation to the legislative intendment.

We must remember there was no right of action for wrongful death at common law and only by virtue of statutory enactment did it become possible to recover upon such claims. In State ex rel. Kansas City Stock Yards v. Clark, l. c. 144, the Court, nothing that the wrongful death statutes had been "amended and reenacted in 1967," quoted from Wessels v. Gipfel, supra at 656:

"There was no change in the basic theory of the Wrongful Death Act. The class of persons who had first priority to sue was changed, the time in which they were permitted to sue was extended to one year, and the maximum period in which any suit could be brought was extended from one year to two years. Therefore, the construction of the Wrongful Death Act prior to the 1967 amendments which resulted in the present Act is applicable to the present Act, subject only to the changes made in the definition of classes and the lengthening of the periods of limitation."

In its critical analysis that followed, the Court pointed out that the Act provides for one indivisible death claim, vesting first in the spouse and minor children, either jointly or severally, and if the deceased left surviving a father or mother, the spouse and minor children must exercise their preferred right by filing suit within one year from the date of death. If however, the spouse and minor children fail to sue within one year, the claim passes to and vests in the father and mother or the survivor. If there is no father and/or mother, the spouse and minor children have the full two years in which to sue. Further, if there is no spouse or minor children, the father and mother may sue at any time within the two year period and the party having the right to enforce the claim has absolute control thereover during the period specified and may bring an action or settle without suit. In addition, when appropriated by one of the preferred classes of beneficiary, the claim terminates the rights of any others mentioned in the statute with the exception that if the person so appropriating dies during the limitation period without having completed enforcement, the next alternative claimant may file within the two year limitation period. Finally, as provided in § 537.080(3), if there be no husband, wife, minor children or others of the classes designated in the preceding subsection, ". . . then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent." In addition to these interpretative statements of § 537.080, we examine the provisions of § 537.090, RSMo Supp. 1975, which speaks to damages for wrongful death. That section requires such damages shall be awarded "as will fairly and justly compensate such party or parties for any damages he or they have sustained and are reasonably certain to sustain in the future as a direct result of such death." (Emphasis ours.) Considering sections 537.080-537.100 in their entirety, there emerges a clear legislative intent to provide damage claims for those classes we normally would expect to find most affected by the death of a family member in descending order of their dependence. This is not to say that in every class the level of dependence must or does follow the legislative pattern but such variants, stemming from statutory underinclusiveness or inability to foresee all...